In U.S. top court race case, John Roberts is chief phrasemaker

Tue Oct 15, 2013 8:10pm EDT

By Joan Biskupic

WASHINGTON (Reuters) - As U.S. chief justice, John Roberts has sought to rein in laws he insists have gone too far on race. At the Supreme Court on Tuesday, he matched rhetoric to action with a pithiness that underscores his opposition to racial preferences.

The court heard a challenge to a Michigan ban on race-based "preferential treatment" in education admissions - a ban that Roberts appeared to support in his questioning of lawyers who argued the case.

The session gave Roberts another opportunity to assert the United States has moved beyond a time when affirmative action was beneficial to blacks and Hispanics - and to assert it with attention-getting phrasemaking.

In a 2007 case, he wrote: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

On Tuesday, when civil rights lawyer Mark Rosenbaum stepped to the lectern to argue that the Michigan ban violated the U.S. Constitution's guarantee of equal protection, Roberts leaned forward from his center chair on the mahogany bench and said curtly: "You could say that the whole point of ... the (Constitution's) Equal Protection Clause is to take race off the table."

The chief justice's remarks resonated in the give-and-take, and when Michigan's solicitor general John Bursch returned to the lectern for his rebuttal, he referred to Roberts's "observation that the whole point of equal protection is to take race off the table."

Roberts' reputation for distilling an argument preceded his appointment by Republican President George W. Bush to the Supreme Court in 2005. As a lawyer, Roberts racked up 39 cases before the justices and earned accolades across the political spectrum for getting to the crux of his cases.

RHETORICAL FLOURISHES

Tuesday's dilemma focused on the political process for ending - or ensuring - affirmative action at Michigan colleges and universities.

Roberts, whose opposition to racial policy was stoked in the 1980s when he worked in the Ronald Reagan administration, has ruled against race classifications in education, employment and voting rights. He has done it with rhetorical flourishes that lay down conservative markers and echo through the years.

"Things have changed in the South," he said in a 2009 voting rights case.

It helped foreshadow his decision for the court in June curtailing a provision of the 1965 Voting Rights Act that required states with a history of discrimination at the polls, mainly in the South, to obtain federal approval before making any electoral changes.

On Tuesday, when Shanta Driver, a lawyer for the Coalition to Defend Affirmative Action, stepped up to argue against the Michigan amendment, she broadly asserted the value of affirmative action to end "inequality in education" for blacks and whites.

Again leaning forward, his wire-rimmed reading glasses down his nose, Roberts asked, "What if the question of whether it's a benefit to the minority group is more open to debate?"

Driver said black voters in Michigan "certainly" believe affirmative action is valuable because 90 percent of them opposed the state amendment in 2006.

Roberts rejoined, "There may be a difference between popularity and benefit."